(c)assists any public enemy at war with the PRC by doing any act with intent to prejudice the position of the PRC in the war.

Synopsis

The existing 'treason' offence is substantially narrowed, such as abolishing the equation of assaulting the sovereign with treason. The scope of the offence will be clearly defined.

'War' is narrowed to declared war or open armed conflicts. General demonstrations or riots will be excluded.

'Assisting public enemy' refers to assisting a foreign government or foreign armed forces that are at war with China, and with an intent to prejudice the position of China in the war. Humanitarian aid to ordinary people will not constitute 'assisting public enemy.'

The terms 'instigate' and 'intimidate' etc. originate from existing legislation, and are similar to those of other common law jurisdictions. They will be interpreted in accordance with common law precedents and principles.

'Misprision of treason' is an existing common law offence, which refers to a person who, knowing that another person has committed treason, fails to report the offence to the proper authorities within a reasonable time. The Bill abolishes this offence to ease public concerns.

'Serious criminal means' originates from the definition of 'terrorist acts' in the United Nations (Anti-Terrorism Measures) Ordinance, and must be a criminal act itself to constitute an offence.

The relevant offences are committed only when the 'force' or 'serious criminal means' used is so serious that it would seriously endanger the stability or territorial integrity of the State. The scope of the offence is narrowly defined and will not affect human rights and freedoms.

Misprision of Treason

The common law offence of misprision of treason is abolished.

Subversion

A person commits subversion if he -

(a) disestablishes the basic system of the PRC as established by the Constitution of the PRC;

(b) overthrows the CPG; or

(c) intimidates the CPG,

by using force or serious criminal means
that seriously endangers the stability of
the PRC or by engaging in war.

Secession

A person commits secession if he withdraws any part of the PRC from its sovereignty by -

(a) using force or serious criminal means that seriously endangers the territorial integrity of the PRC; or

(b) engaging in war.

Sedition and seditious publications

The provisions

Sedition

A person commits sedition if he -

(a)intentionally incites others to commit an offence of treason,
subversion or secession; or

(b)intentionally incites others to engage in violent public disorder
that would seriously endanger the stability
of the PRC.

and the incitement is likely to induce
others to commit such offences or engage
in such acts.

Possession of seditious publication

The existing offence of possession of seditious publication is abolished.

with intent to incite others, by
means of the publication, to commit
an offence of treason, subversion
or secession.

'Seditious publication' means
a publication that is likely to induce
a person to commit an offence of
treason, subversion or secession.

Synopsis

The offence is committed only if one incites others to seriously endanger the security or stability of the State by means of war, the use of force, or serious criminal means akin to terrorist acts.

The offence of 'sedition' adopts the existing common law concept of 'incitement.' The scope of criminal law is not expanded.

The 'likelihood' element is included.

Regarding seditious publication, the Bill not only abolishes the existing offence of 'possession of seditious publication', but also substantially narrows the existing scope of 'seditious publication' by repealing definitions that are too broad and by including the intention to commit a crime as a necessary element. Human rights are fully protected.

The amendments in the Bill are more protective of the freedom of speech, of the press, of publication, of academic research, literary and artistic creation, etc. compared with existing legislation.

The offence of unlawful disclosure

The Provisions

Information related to Hong Kong
affairs within the responsibility of
the Central Authorities

A person who is or has been a public servant or government contractor commits an offence if he makes, without lawful authority, a damaging disclosure of any information -

(a) that relates to any affairs concerning the HKSAR which are, under the Basic Law, within the responsibility of the Central Authorities; and

(b) that is or has been in his possession by virtue of his position as a public servant or government contractor.

A disclosure is 'damaging' if it endangers or would likely to endanger national security.

Synopsis

In line with the constitutional situation after Reunification, and to more clearly stipulate the scope of protected information, the information on the relations between the HKSAR and the Central Authorities will be taken out from the currently protected category of 'international relations', and be strictly defined as information related to the affairs of the HKSAR that are within the responsibility of the Central Authorities under the Basic Law. Therefore, the free flow of economic and commercial information will not be affected.

The Bill also stipulates that, to constitute an offence in relation to this category of information, public servants or government contractors must know, or have reasonable cause to believe, that the information in question belongs to the category, and that disclosure of it without lawful authority will, or is likely to, endanger national security.

'National security' is defined according to existing local legislation, i.e. the safeguarding of the territorial integrity and the independence of the PRC.

Disclosures that merely cause embarrassment to the Government will not be penalized.

Information acquired by illegal access

A person possessing any information acquired by means of illegal access, and discloses it without lawful authority and knowing, or having reasonable cause to believe, that the information -

(a) belongs to a category protected from disclosure under the Official Secrets Ordinance;

(b) the disclosure of which would be damaging; and

(c) is acquired by means of illegal access

commits an offence.

'Illegal access' to information is limited to the following circumstances -

(a)

the information comes into or remains
in his possession by virtue of an offence
of -

(i) unauthorized access to computer
by telecommunications;

(ii) access to computer with criminal
or dishonest intent; or

(iii) theft, robbery or burglary,

committed by him in relation to the
information; or

(b) the information comes into or remains in his possession in exchange for an advantage the offer or acceptance of which is an offence of bribery.

Under existing legislation, it is an offence to make a damaging disclosure of protected information that is disclosed by a public servant without lawful authority. However, it is not an offence if the information in question is obtained through unlawful means such as by theft from a confidential registry of the Government.

This is obviously a loophole in the law. The Bill therefore stipulates that it is an offence to make a damaging disclosure, without lawful authority, of protected information obtained as a result of illegal access.

To clearly define what constitutes 'illegal access', the Bill limits the term to the acquisition of information by specified criminal acts under Hong Kong laws, i.e. hacking, theft, robbery, burglary and bribery.

The offence is very narrowly defined. The elements of the offence are listed clearly in the current legislation and in the Bill. Whether a person is convicted will be determined independently by the courts of Hong Kong.

Proscription of organization endangering national security

Contents of the provisions

Proscription of organization endangering
national security

The Secretary for Security may by order
proscribe any local organization if he reasonably
believes that the proscription is necessary
in the interests of national security and
is proportionate for such purpose.

Such proscription is only applicable to
a local organization -

(a) the objective, or one of the objectives, of which is to engage in treason, subversion, secession or sedition or commit an offence of spying;

(b) which has committed or is attempting to commit treason, subversion, secession, sedition or an offence of spying; or

(c) which is subordinate to a mainland organization the operation of which has been prohibited on the ground of protecting the security of the PRC, as officially proclaimed by means of an open decree, by the Central Authorities under the law of the PRC.

'Subordination' refers to the following circumstances:

(a) the local organization solicits or accepts for its operation substantial financial contributions, sponsorship or support, or loans of a substantial amount, directly or indirectly, from the mainland organization;

(b) the local organization is under the direction or control, directly or indirectly, of the mainland organization; or

(c) the policies of the local organization are determined, directly or indirectly, by the mainland organization.

Synopsis

The Bill expressly provides for a number of safeguards in respect of the proscription mechanism.

The following criteria must be satisfied for the proscription of a local organization that is subordinate to a Mainland prohibited organization:

There must be reasonable ground to believe that it is necessary and proportionate for the interests of national security to proscribe the local organization;

The Mainland organization concerned must be prohibited by an open decree on the ground of national security by the Central Authorities in accordance with national laws; and

There must be evidence, in accordance with the laws of Hong Kong, that the local organization is subordinate to the prohibited Mainland organization (subordination includes acceptance of substantial financial sponsorship from the Mainland organization concerned or being under the control of the Mainland organization). Ordinary connection does not amount to 'subordination'.

A local organization that is subordinate to a prohibited Mainland organization will not be automatically proscribed.

In addition, the Bill explicitly specifies that the provisions relating to the proscription mechanism must be interpreted, applied and enforced in a manner that is consistent
with Chapter III of the Basic Law, which incorporates the ICCPR
standards.

Any decision to proscribe an organization in Hong Kong is subject to appeal, to be adjudicated by the local courts in accordance with Hong Kong laws.

Articles 27 and 39 of the Basic Law provide constitutional safeguards to freedom of association. Legislation that implements Article 23 and the exercise of the relevant powers are subject to these safeguards.

Offence relating to proscribed organizations

A person who -

(a) is or acts as an office-bearer or professes to be or claims to be an office-bearer of;

(b) manages or assists in the management of;

(c) is or acts as a member of;

(d) attends a meeting of; or

(e) pays money to or gives any other form of aid to,

a proscribed organization is guilty of an offence. Nevertheless, the following circumstances can serve as a defence -

(a) the person did not know and had no reason to believe that the organization has been proscribed;

(b) in relation to his being or acting as an office-bearer or a member of an organization, the person had taken all reasonable steps to cease to be such office-bearer or member.

The decision to proscribe an organization is targeted at the continued operation of the organization. It is not a criminal offence aimed at an individual. A person will be prosecuted only if he disregards the proscription order and continues to support the operation of the organization after it has been proscribed.

Any person who has no knowledge of the proscription of a local organization will not be punished for being an office-bearer or a member of that organization.

The offence must be adjudicated by the courts in accordance with Hong Kong laws. No one will be presumed guilty without trial.